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United States v. Achey

United States Court of Appeals, Eleventh Circuit

November 21, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JEREMY ACHEY, Defendant-Appellant.

          Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:17-cr-00165-PGB-KRS-1

          Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and ROBRENO, [*] District Judge.

          ROBRENO, DISTRICT JUDGE

         Achey appeals his conviction for conspiracy to distribute a controlled substance, arguing that there was insufficient evidence to prove the existence of a conspiracy. This argument depends on a contention that the government was required to prove Achey conspired to distribute a specific controlled substance and at trial it only proved that Achey distributed a generic controlled substance. We disagree and hold that the government was only required to prove Achey conspired to distribute a generic controlled substance and that there was sufficient evidence to prove that multiple people conspired with Achey to distribute a generic controlled substance. We affirm.

         I. BACKGROUND

         Achey sold controlled substances on the dark web under the name EtiKing. On February 27, 2017, one of Achey's customers died from an overdose involving an "analogue" of fentanyl, tetrahydrofuran fentanyl ("fentanyl"). The victim had acquired the drug that caused her death from EtiKing on the dark web. Following an investigation that included an undercover agent posing as a customer of EtiKing's, Achey was arrested and charged with one count of conspiracy to distribute and possess with intent to distribute a controlled substance analogue[1] and two counts of distributing a controlled substance analogue. The jury ultimately returned a conviction on all counts and determined that Achey had sold the drug that caused the victim's death.[2]

         The investigation revealed that various actors were involved in Achey's drug operation. Achey purchased at least two types of fentanyl-methe fentanyl and tetrahydrofuran fentanyl-from "LS," a company based in China. Specifically, he bought 50 grams of tetrahydrofuran fentanyl from LS. Others involved in the conspiracy included Achey's wife, who delivered parcels of drugs to various post offices; a reseller of drugs, named "illianlikeavillian," who sold smaller quantities of some of the drugs Achey sold him; and some repackagers who helped Achey ship out orders to customers.

         Achey only challenges his conviction for conspiracy under Count One of the indictment. Count One charged:

[Defendant] did knowingly, willfully, and intentionally conspire with other persons, both known and unknown to the Grand Jury, to distribute and possess with intent to distribute a controlled substance analogue that was intended for human consumption, which violation involved a mixture and substance containing a detectable amount of . . . (Tetrahydrofuran fentanyl) Hydrochloride, a Schedule II controlled substance analogue, and a mixture and substance containing a detectable amount of . . . (4-ACO-DMT), a Schedule I controlled substance analogue, and is therefore punished under 21 U.S.C. § 84l(b)(1)(C).
Pursuant to 21 U.S.C. § 84l(b)(1)(C), on or about February 27, 2017, a person identified herein as "K.G." died as a result of the use of a controlled substance analogue that the defendant conspired to distribute and possess with intent to distribute, that is, a mixture and substance containing a detectable amount of . . . (Tetrahydrofuran fentanyl) Hydrochloride, a Schedule II controlled substance analogue.
All in violation of 21 U.S.C. §§ 802(32), 813, and 846.

         Achey challenges the sufficiency of the evidence to prove Count One on the basis that the government was required to prove that he conspired to distribute fentanyl or DMT, and it failed to prove a conspiracy as to the specific drug.

         II. STANDARD OF REVIEW

         When reviewing a challenge to the sufficiency of the evidence, the evidence must be considered "in the light most favorable to the Government, drawing all reasonable inferences and credibility choices in the Government's favor." United States v. Browne, 505 F.3d 1229, 1253 (11th Cir. 2007). "If a reasonable jury could conclude that the evidence ...


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